June 2016 – Newsletter

Time to review some facts that can impact on your business.

Well, who would believe we are into mid-June already! Where is the year going?

Talking to some of our clients we realized that it may be time to revisit some of the simple “refresher” points when we talk WHS and HR compliance. Everyone has their heads down trying to keep businesses going, there is the odd occasion when things go terribly wrong, and what should have been avoided, ends up a major issue!!

We have attached a couple of “court outcomes” for you to go through and use as a tool box or meeting topic for your team when you are together next.

We thought first of we should add the ALERT that has come through this week after the crane toppled in South Brisbane.

“This alert is to remind you and your organisation that if you are planning to operate a crane with partially extended outriggers, you must verify the acceptability of the loading configuration from the manufacturer’s load charts. The load chart shows the allowable lifting capacities of the crane when set up with the outriggers partially extended and must be complied with. Additionally, set-up and pack-up of any crane must be completed in accordance with procedures specified by the manufacturer.”

Now for the court outcomes as stated:

Fine for fatality:

A construction company has been fined $170,000 over a fatal workplace incident in 2011.

The Federal Court in Brisbane handed down the penalty in Brisbane on Wednesday. The company breached the then Commonwealth Occupational Health and Safety Act 1991, which has been replaced by the Work Health and Safety Act that came into effect in 2012. The victim, a mechanical fitter was working on smoke duct formwork in the Airport Link Tunnel on 29 September 2011 when a section he was cutting collapsed, crushing him. He was brought to the hospital where he died two days after.

In an Agreed Statement of Facts tendered to the court, the company acknowledged its failure of providing the mechanical fitter with training on risk or control measures for the work, or a safe system of work for the cutting of the formwork.

“In this case, there was a clear failure to take all reasonably practicable steps to ensure this work was carried out safely,” said Comcare Chief Executive Officer Jennifer Taylor.

“Detailed risk assessments are fundamental requirements in identifying hazards and ensuring the health and safety of workers, and that did not happen here.”

Point: Is it time to revisit your risk assessments?

What is in your training matrix? Is it up to date?

 

Are you a labour hire company or do you use a labour hire company?

This is for you to read:

Miserable failings by labour hire company

Two recent occupational health and safety (OHS) prosecutions in South Australia related to labour hire employees and providers indicate changes in enforcement approach and clues for change as they illustrate how some people and companies have almost no regard for the safety of its employees, according to a Safe Work SA media release dated 28 May 2016

“The Industrial Court convicted Queensland based labour hire company, Fix Force (Qld) Pty Ltd, and imposed a penalty of $150 000 plus court costs.

On 22 October 2012, Mr. Clinton Benson, a contracted employee on the South Road Super Way Project, suffered life threatening injuries when his head was crushed between a lifting arm and welding table. Following investigation by Safe Work SA, Fix Force (Qld) Pty Ltd was charged with offences under the then Occupational Health Safety and Welfare Act 1986 (SA), for “failure to ensure its employee was safe from injury and risk to health whilst at work, as far as was reasonably practicable.” Prosecuting labour hire companies has been problematic because of the legal maneuvering and contractual structures that many companies implement but OHS responsibilities are reasonably clear that a duty of care is expected and required.  A worker dies or is injured and an investigation identifies the decisions taken by whoever that may have contributed to the incident.

“It is the responsibility of the labour hire company to ensure hazard identification and risk assessments are completed at the host workplace before allowing employees to work in and around items of plant… This conviction reinforces that a labour hire company has a work health and safety duty to employees which cannot be delegated to others including joint venture partners.”

Case 2:

“The Industrial Court convicted labour hire employer, Big Mars Pty Ltd, this week for failing to provide a safe system of work and failing to provide information, instruction, training and supervision. On 6 November 2013, a temporary migrant from Taiwan, Yu Hsiang Hsiao, fell into a bath of caustic soda. Mr. Hsiao suffered severe burns which left him hospitalised for more than three months.

Following a thorough investigation by Safe Work SA, Big Mars Pty Ltd was charged with offences under the Work Health and Safety Act 2012 (SA), for failure to comply with their health and safety duty which exposed Mr. Hsiao to a risk of death or serious injury.”

The significant difference in this prosecution was that it occurred under the more recent Work Health and Safety (WHS) legislation so not only is it a safety warning to labour hire companies around Australia, it may also indicate how prosecutions and penalties apply under revised OHS laws that most States have implemented. The size of the financial penalty is also a point of difference with the penalty imposed under WHS laws being double that of the prosecution under the OHS laws. Although the magistrate had the discretion to apply a fine of $A1.5 million.  If deterrence is intended through the application of a substantial fine, an amount closer to the maximum could change the labour hire industry very quickly.

“As a labour hire business Big Mars had a duty to assess the abattoir, including the Hook Room, before it sent Mr. Hsiao to work there. It had a duty to provide an appropriate safety induction in Mr. Hsiao’s language. It had a duty to take all reasonable practicable steps to ensure that risks to safety were controlled, and it had a duty to regularly monitor and review the workplace’s safety standards. It was also obliged to consider the safety aspects of Mr. Hsiao’s youth and language barrier!!!!! Big Mars should have obtained details of the tasks that its worker would be required to carry out. It should have obtained information from Thomas Foods or made its own enquiries, about all specific foreseeable hazards and resulting risks of injury, together with the adequacy of hazard control measures. Big Mars should have ensured that Thomas Foods provided and maintained appropriate written Safe Operating Procedures that referred to and required maximum use of the gates, and use of an aid to move the hook tree along the rail over the bath. If all this was not provided Big Mars should not have placed its employee in that role. Big Mars should have provided a written translation of all relevant safety and work instructions, and it should have ensured that Mr. Hsiao was told of the dangerous chemicals he was to work with, and of the appropriate first aid measures. Big Mars should also have had some system to assess the effectiveness of the training and supervision provided by Thomas Foods to Mr. Hsiao. So much could have been done to prevent this from happening!!

For those interested in extra information about the Chemical Changes as of January 2017 or effective contractor management programs I have added the information in a separate document on our website. If there is anything mentioned through this newsletter you require further information on, do not hesitate to contact us.

Until next newsletter.

Stay safe and well.

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Workplace Health & Safety Consultants

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